Guardianship: Balancing Liberty and Protection

By Julia Freeman-Woolpert (2006)

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…”
– Declaration of Independence.

Liberty. We Americans value it right up there with life itself. Indeed, Patrick Henry’s “Give me liberty or give me death”, and our own state motto, “Live free or die” place liberty before life. Yet our laws allow an individual’s liberty to be restricted in certain instances. One such instance is that of a person who is unable to make competent decisions.

After a severe brain injury, a person may have problems with judgment, making decisions, getting things done, taking care of basic needs, and emotional regulation. When a person has severe limitations in these abilities, relatives and treating professionals may consider pursuing guardianship.

Guardianship is a significant infringement on a person’s liberty and autonomy, and as such it is not a step that can or should be taken lightly. A guardianship removes from the ward the freedom to make certain decisions and gives that authority to another person or entity. The guardian exercises substituted judgment and makes legally binding decisions on behalf of the ward in order to protect and advance his or her well-being and safeguard property. Depending on the terms of the guardianship, the guardian can make decisions about treatment and services, decide on living arrangements, decide whether or not the ward can marry, dispose of the ward’s assets, and determine many other details of the ward’s present and future life.

The New Hampshire statute on guardians and conservators, RSA 464-A, puts into place strict processes and safeguards to protect the individual’s civil and property rights, to ensure that unnecessary guardianships are not granted, and that the person’s liberty is preserved as much as possible. Guardianship can only be ordered after the court has determined it is necessary “beyond a reasonable doubt”, the highest burden of proof under the law. It is a last resort option, when there are no other alternatives to protect the person from substantial harm.

A few incidents of poor judgment, negligent behavior, or lack of resources are not enough to require a guardian. A judge must be convinced that: 1. the person is unable to manage his or her affairs, 2. a guardian is needed to ensure continuing care, supervision, and rehabilitation or to manage money and property, 3. there are no available alternative resources which are suitable with respect to the person’s welfare, safety, and rehabilitation or the prudent management of property and money, and 4. it is the least restrictive form of intervention consistent with the preservation of the person’s civil rights and liberties. All evidence of incapacity presented to the court must have occurred within six months, with an incident demonstrating this incapacity having occurred within twenty days of the filing of the petition.

There are two main types of guardianship, a “guardian of the person”, to manage the ward’s personal affairs; and “a guardian of the estate”, to manage the ward’s financial affairs. New Hampshire’s law allows any competent person to be appointed guardian, provided there is no conflict of interest. A bank or trust company can be appointed guardian of the estate. Agencies or institutions providing services to the person are presumed to have a conflict of interest but may be appointed under certain circumstances if there are no other alternatives. Practically speaking, the two public guardianship programs in the state, the Office of Public Guardian and Granite State Guardianship Services, provide such an alternative. The proposed ward can tell the court if there are people he/she does or does not want as a guardian, and the court should consider this.

Guardianship can be permanent or temporary. A temporary guardian may be more appropriate if the person is expected to get better, or if there is a need for a guardian for a specific, time-limited reason such as a medical procedure or the sale of property.

In guardianship proceedings, proposed wards have a right to a lawyer who is supposed to represent his or her expressed interests, preferences and decisions to the court. The proposed ward also has the right to notice of all the hearings and proceedings, and to attend the hearing and present evidence and testimony. At any time, wards can petition the probate court to have the guardianship limited or terminated.

The judge’s order appointing a guardian will give details of the nature and scope of the guardianship, and the limitations of the guardianship. The guardianship should only limit those rights the ward is unable to exercise. Commonly limited rights are to: decide on living arrangements; arrange for medical care and other services; and manage money and property. Other rights that may be limited include the right to marry or divorce; have a driver’s license; make or change a will; testify in court; make contracts; buy, sell or give away property; authorize the release of records; travel; and file a lawsuit. A guardian cannot: admit the ward to an institution or authorize psychosurgery, sterilization, electroshock, or experimental treatments, without the court’s specific permission.

Even if a person is legally incompetent, if there are other adequate safeguards of the person’s safety and well being, a guardianship is not necessary. There are a number of less restrictive alternatives to guardianship such as a revocable power of attorney or conservatorship; supportive services such as visiting nurses, homemakers, home health aides, and adult day care; a friend or mentor willing to give advice and support in making good decisions; and a representative payee for social security benefits. In practice, some judges are not aware of the alternatives and therefore don’t take them into account.

Guardianship, like so many other human constructs, can be abused. On occasion, courts give guardians more power than is necessary to protect the person. Some judges issue blanket guardianships, checking off all the boxes on the form without giving much thought to which rights really need to be limited. This includes restricting the right to vote, which is listed on the court form even though the NH guardianship statute does not address voting as a right to be limited. Guardians sometimes exercise more power than the court has given them. The Disabilities Rights Center has represented individuals whose rights were unnecessarily limited, who were not afforded their full rights to due process, or in some cases where a guardian was not acting in the best interest of their ward.

A guardian has a solemn legal and ethical responsibility towards the ward to “act with respect to the ward in a manner which safeguards to the greatest extent possible the civil rights of the ward, and shall restrict the personal freedom of the ward only to the extent necessary” [RSA 464-A:25(g)]. The National Guardianship Association’s Model Code of Ethics, authored by New Hampshire lawyers Michael Casasanto, Mitchell Simon, and Judith Roman, requires guardians to try to determine the ward’s preferences and make decisions in accordance with those preferences as much as possible without harming the ward. Guardians are advised to “exercise the highest degree of trust, loyalty and fidelity in making decisions on behalf of the ward”. In the words of Thomas Jefferson:

“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”